When a defendant charged with the murder of her spouse argues that she acted in self-defense and indicates she will present expert testimony about battered woman syndrome, but does not assert an insanity defense or claim mental incompetence, does a trial court violate the defendant’s constitutional rights by compelling her to submit to a psychiatric examination by the state’s expert and to respond to the examiner’s questions regardless of their potential to evoke self-incriminating answers?

After conducting a compelled psychological examination of a criminal defendant, may the state’s expert testify at trial about statements the defendant made during that examination, including testimony pointing out inconsistencies between the defendant’s statements during the compelled examination and her earlier statements to police?

BACKGROUND: Megan Goff admitted shooting her husband and was charged with murder. After her attorneys indicated they would argue that she acted in self-defense and planned to introduce expert testimony at trial about Battered Woman Syndrome (BWS), the state asked the court to order that Goff submit to a psychological examination by the state’s expert. Over the objection of Goff’s lawyers, the court ordered Goff to submit to an examination by the state’s expert.

At trial, Goff’s expert testified that in his opinion she suffered from BWS and believed that her life was in imminent danger at the time she shot her husband. The state’s expert testified that he had been unable to form an opinion regarding whether Goff suffered from BWS, but over repeated defense objections then recounted a number of statements made by Goff during his compelled examination of her, and pointed out what he characterized as inconsistencies between those statements and Goff’s answers to questions posed by police during their investigation of her husband’s shooting. At the conclusion of evidence, the judge rejected Goff’s claim of self-defense, found her guilty of murder, and sentenced her to a prison term of from 33 years to life.

Goff appealed her conviction, arguing that the trial court violated her constitutional right against self-incrimination by compelling her to submit to examination by the state’s expert that was not limited to questions about her mental state but also asked detailed factual questions about events surrounding the shooting that were later used against her at trial. She also argued that her due process rights were violated by the trial court’s admission of testimony by the state’s expert that recounted Goff’s statements during the compelled examination. The 4th District Court of Appeals upheld the trial court’s action, holding that by raising the argument that she acted in self-defense and offering expert testimony that she suffered from BWS, Goff had waived her right not to answer questions from the state’s psychologist exploring her mental state and her actions allegedly arising from that mental state. Goff sought and was granted Supreme Court review of the 4th District’s decision.

Attorneys for Goff argue that under R.C. 2945.371(A), a defendant may be compelled to submit to examination by a state-selected psychologist only when he or she raises an insanity defense or claims that he or she was mentally incompetent and therefore unable to form the mens rea (culpable mental state) required by law to support a conviction for the charged offense. In this case, they argue, Goff made no claim that she was insane or incompetent, but merely asserted that she acted in the belief that her life was in danger, and offered expert testimony on BWS to raise the court’s awareness that the perceptions of women who have been subject to extensive mental and physical abuse are different than those of the average person.

They also point to state and federal court decisions holding that when a trial court does require a defendant to submit to questioning by the state’s psychologist, the defendant’s right against self-incrimination must be protected by: 1) strictly limiting the permissible context of the examination to questions about the defendant’s mental condition, and/or 2) strictly barring the state’s expert from using information gained during a compelled psychological examination to give testimony that undermines the defendant’s credibility or presents factual information that bears on the defendant’s guilt. In this case, they say, the state’s expert questioned Goff for roughly eight hours, asking detailed questions about the circumstances surrounding the killing that had nothing to do with her mental state, and then testified at length in court in a manner that was clearly intended to damage Goff’s credibility and highlight factual information that supported the state’s claim that she did not act in self-defense.

Attorneys for the state urge the Court to affirm the 4th District’s holding that, notwithstanding R.C. 2945.371(A), when a defendant introduces expert testimony about his or her mental state at the time of an offense, a trial court has inherent authority to require an examination of the defendant by the state’s expert for the purpose of rebutting the defendant’ expert testimony. They point out that because the defendant is not required to testify or face cross examination at trial, a court-ordered examination of the defendant by the state’s expert may be the only opportunity the state has to gain information necessary to challenge the defendant’s claims regarding his or her mental state.

In this case, they argue, Goff raised her mental state as a defense against the charge brought against her, and the trial court properly allowed the state to have its expert examine her. They note that during his trial testimony the state’s expert did not state an opinion either about Goff’s credibility or her guilt, and assert that he pointed out inconsistencies between her statements to him and her earlier statements to police for the sole purpose of rebutting her own expert’s testimony that her actions were the result of BWS.

Contacts
James B. Collier Jr., 740.533.4360, for the state and Lawrence County prosecutor's office.

ISSUE: When the plaintiff in a civil lawsuit seeks damages under a provision of federal law for alleged injury caused by a public agency or employee, and the trial court denies a motion for summary judgment in favor of the defendant based on a finding that sovereign immunity does not exempt the defendant from potential liability, is that ruling a “final” order subject to immediate review by a court of appeals under R.C. 2744.02(C)?

BACKGROUND: Ohio’s “sovereign immunity” statute, R.C. Chapter 2744, generally exempts public agencies and their employees from civil liability for negligent injuries they may cause to third parties during the lawful performance of their governmental duties. Effective April 9, 2003, the General Assembly enacted R.C. 2744.02(C), which provides that a ruling or order of a state court that “denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this Chapter or any other provision of the law” is a final order (i.e., an order that may be appealed immediately rather than an order that may only be appealed after the underlying lawsuit has been fully adjudicated).

In this case, Leola Summerville of Forest Park, near Cincinnati, filed suit against Forest Park and two city police officers, Adam Pape and Corey Hall, who shot and killed her husband, Roosevelt Summerville, in the course of responding to an emergency call at the Summervilles’ home. The complaint alleged that the officers’ actions and the city’s lack of supervision violated provisions of both state and federal law. The officers and the city filed motions for summary judgment dismissing all of the claims asserted against them on the basis that they were immune from civil liability for the events underlying the lawsuit. The trial court entered summary judgment in favor of the officers on all counts except a claim that they had violated a federal civil rights law, 42 USC Section 1983, by using excessive force against Mr. Summerville; and entered summary judgment in favor of Forest Park on all claims except a federal Section 1983 claim that the city had failed to provide the officers with proper training.

The city and the officers attempted to immediately appeal the portions of the trial court’s decision denying them summary judgment on the Section 1983 claims. Attorneys for Mrs. Summerville urged the 1st District Court of Appeals to dismiss those appeals, arguing that R.C. 2744.09(E) precludes the application of any portion of R.C. Chapter 2744 to “civil claims based on alleged violations of the constitution or statutes of the United States …” The court of appeals dismissed the defendants’ appeals without opinion, thereby declining to decide on the merits whether the trial court had properly denied their claims of sovereign immunity with regard to the undismissed Section 1983 claims. The officers and the city sought and were granted Supreme Court review of the 1st District’s dismissal of their appeals.

Attorneys for the officers and the city argue that the language adopted by the General Assembly in enacting R.C. 2744.02(C) does not restrict the right to an immediate appeal to denials of immunity under Ohio’s sovereign immunity statute, but plainly extends that right to a denial of governmental immunity under “any other provision of the law,” which they say includes claims based on federal law and/or local ordinances. They argue that the language in R.C. 2744.09(E) cited by the Summervilles does not conflict with the immediate-appeal requirement in R.C. 2744.02(C), but merely requires state courts to apply federal immunity standards (rather than the state standards set forth in Chapter 2744) in determining whether to grant a defendant immunity from a claim based on federal law.

They also argue that, even if the Court should hold that the immediate-appeal provision in R.C. 2744.02(C) does not apply to claims asserted under federal Section 1983, in setting state policy for dealing with such cases the Court should follow the practice of the federal courts—which is to allow immediate appeals of the denial of governmental immunity. They contend that such a policy is consistent with the legislative intent underlying R.C. 2744.02(C), which they say is to spare taxpayers the needless expense of fully litigating a civil damage claim against a public agency or employee only to have a court of appeals later hold that the case never should have gone to trial because the defendant was entitled to immunity.

Attorneys for the Summervilles respond that the plain language of R.C. 2744.09(E) bars the application of all of Ohio R.C. Chapter 2744, including the immediate-appeal provision in R.C. 2744.02(C), to plaintiffs’ claims that are asserted under the U.S. Constitution or a federal statute. Because the undismissed claims in their suit against the city and the officers were brought under 42 USC Section 1983, they assert, the 1st District correctly dismissed the defendants’ appeals because those appeals were based on a state immunity statute that is not applicable to federal claims.

Contacts
Lawrence E. Barbiere, 513.583.4200, for the City of Forest Park and Officers Adam Pape and Corey Hall.

Does State Law Invalidating Local Gun Regulations Violate City's Constitutional 'Home Rule' Powers?

City of Cleveland v. State of Ohio, Case no. 2009-2280
8th District Court of Appeals (Cuyahoga County)

ISSUES:

Does R.C. 9.68 violate the City of Cleveland’s “home rule” powers under the Ohio Constitution by prohibiting the city from enforcing local ordinances that regulate the sale, possession, ownership and discharge of firearms within the city limits?

Does R.C. 9.68 violate the separation of powers doctrine of the Ohio Constitution by legislatively mandating that, in cases where municipalities are sued for continuing to enforce local gun ordinances, state courts must order the city to pay the court costs and attorney fees of any litigant who successfully challenges the constitutionality of that ordinance?

BACKGROUND: In December 2006, the General Assembly enacted Sub. House Bill 347. The bill contained specific amendments to the state’s previous statutory scheme regulating the concealed carry of firearms and established new statewide administrative procedures for the issuance of concealed carry licenses and penalties for violations of those licensing requirements.

The other major component of the bill was a new section of state law, R.C. 9.68. That section: 1) stated that it was the legislature’s intention in enacting the section “to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, carrying, sale or other transfer of firearms, their components and their ammunition.” 2) declared that “except as specifically provided by the U.S. Constitution, Ohio Constitution, state law or federal law” gun owners in Ohio may buy, sell, transfer, transport, store or keep any firearm “without further license, permission, restriction, delay or process.” And 3) directed that in any subsequent court case challenging a local gun control ordinance, state courts “shall award court costs and reasonable attorney fees to any person, group or entity that prevails in a challenge to an ordinance, rule or regulation as being in conflict with this section.”

The City of Cleveland filed a declaratory judgment action in the Cuyahoga County Court of Common Pleas challenging the constitutionality of R.C. 9.68 under the Home Rule Amendment to the Ohio Constitution. That amendment, contained in Article XVIII, Section 3, provides that municipalities within the state have the inherent authority to exercise all powers of local self-government and to adopt and enforce within their borders local police regulations to protect the safety and health of city residents, so long as such regulations do not conflict with “general laws” of the state. The city argued that R.C. 9.68 violated its home rule authority because the statute had the effect of invalidating multiple Cleveland city ordinances regulating the possession, sale and registration of firearms within the city. The state filed pleadings opposing the city’s petition for declaratory judgment and seeking summary judgment that the challenged statute was constitutional.

The trial court granted summary judgment in favor of the state, citing the Supreme Court of Ohio’s 2008 decision in Ohioans for Concealed Carry v. Clyde. In that decision, the Court held that a Clyde city ordinance prohibiting the concealed carry of weapons in city parks was void and unenforceable because it was in conflict with the uniform statewide guidelines for concealed carry that had been adopted by the General Assembly as part of Sub. H.B. 347.

The city appealed. On review, the 8th District Court of Appeals held that R.C. 9.68 was unconstitutional because it violated both the home rule amendment and the constitutional separation of powers between the legislative and judicial branches of state government, and remanded the case to the trial court with a directive to enter summary judgment in favor of Cleveland. In its decision, the court of appeals specifically found that R.C. 9.68 was not a “general law” under a four-part test set forth in the Supreme Court of Ohio’s 2002 decision in Canton v. State. The state sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for the state assert that the court of appeals erred by considering R.C. 9.68 in isolation from the rest of Sub. H.B. 347 and from the body of pre-existing state and federal laws that collectively make up a “comprehensive legislative scheme” that qualifies as a general law by prescribing uniform rules of permissible conduct by all citizens of the state with regard to the possession, sale or transfer, transportation and concealed carry of firearms.

They also argue that the absence of a specific provision in state law that regulates some aspect of gun possession or use that may be covered by a local ordinance does not alter the established legal principle that the state has the ability to displace local regulation of an area of law by establishing a uniform set of statewide regulations as it has done here. With regard to the separation of powers, they argue that the provision of R.C. 9.68 awarding attorney fees and costs against cities that continue enforcing local gun ordinances after they have been preempted by state law is no different than multiple other legislative enactments that entitle successful litigants to recover attorney fees and costs in various types of legal actions such as suits for wrongful imprisonment, delinquent child support, voter harassment, age discrimination and unreasonably denied public records requests, among others.

Attorneys for Cleveland urge the Court to affirm the 8th District’s findings that neither R.C. 9.68 nor H.B. 347 in its entirety meets the Canton v. State criteria for a “general law” because they leave major aspects of gun ownership and use that are covered by local ordinances − such as possession of firearms by minors, licensing of gun dealers, regulation of assault weapons and registration of handguns − unregulated under state law. They argue that R.C. 9.68 does not “prescribe rules of conduct for citizens generally” as required under the Canton test, but instead simply prohibits enforcement of any and all local gun-control ordinances regardless of whether there is any demonstrable conflict between a specific ordinance and a provision of state law. Finally, they assert that in enacting the legal fee-shifting provision of R.C. 9.68, the legislature infringed on the exclusive jurisdiction of the judicial branch to regulate the imposition of court costs and fees as a way to intimidate municipalities into repealing or not enforcing their local gun-control ordinances for fear of incurring onerous litigation costs.

Attorney Discipline

The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney Joseph A. Pfundstein be suspended for 12 months, with the entire term of suspension stayed on conditions, for failing to pursue to completion two legal matters in which he had agreed to represent a client, and for subsequently making repeated false statements to the client to cover up his neglect. Pfundstein has admitted that he engaged in the charged misconduct and has entered no objections to the disciplinary board’s findings or its recommended sanction.

The Office of Disciplinary Counsel, which prosecuted the complaint against Pfundstein, has objected to the board’s finding that Pfundstein’s diagnosed condition of dysthymia, a low-grade form of depression, qualifies as a mitigating factor for his misconduct that supports a stay of the entire term of suspension. They argue that nothing in the Diagnostic and Statistical Manual of Mental Disorder (DSM) supports Pfundstein’s claim and the board’s conclusion that there was a causal relationship between Pfundstein’s condition and his dishonesty in making repeated false statements to his client.

In his answer to Disciplinary Counsel’s objection, Pfundstein argues that in order to give mitigating value to his diagnosed mental condition, the board was not required to find a “causal relationship” between that condition and Pfundstein’s misconduct, but merely to find that his depression “contributed” to his improper actions.

ISSUE: In a medical malpractice trial, when the plaintiff alleges that a doctor’s substandard care was the proximate cause of a worsening of the plaintiff’s medical condition, and the doctor admits fault but offers evidence that there was less than a 50 percent chance the plaintiff could have avoided a worsening of his condition if he had received a proper initial diagnosis and treatment, does a trial court commit reversible error when it refuses to instruct the jury to consider whether the plaintiff is entitled to partial damages based on a “loss of chance” theory of recovery?

BACKGROUND: Prior to 1996, Ohio case law barred a medical malpractice plaintiff from making any recovery for damages arising from the negligent diagnosis or treatment of a medical condition if the plaintiff could not show that his failure to recover or a worsening of his condition was proximately caused (i.e. was more likely than not the result of) the defendant’s substandard medical care. This rule of law effectively precluded recovery in cases where a plaintiff could not show that, prior to being treated, he had at least a 50 percent chance of recovery or of avoiding a worsening of his condition.

In a 1996 decision, Roberts v. Ohio Permanente Medical Group Inc., the Supreme Court of Ohio overruled earlier decisions and held for the first time that a plaintiff who had a “less than even chance” of recovery at the time he was treated could collect partial damages from a defendant if he could show that substandard medical treatment caused him to lose whatever chance of recovery he would have had if properly treated.

In this case, Jeffrey Geesaman of Lima filed a medical malpractice suit against Dr. John Cox and other defendants based on Dr. Cox’s misreading of MRI test results that showed Geesaman had suffered a small stroke. Several days after being released from the hospital based on the mistaken reading of his MRI results as normal, Geesaman suffered a much more severe stroke that left him permanently disabled.

During the trial of his malpractice claim, Geesaman presented expert testimony stating that if he had been properly diagnosed and treated on his first visit to the hospital, there was better than a 50 percent chance that his second stroke could have been prevented, and therefore the defendants had “proximately caused” his subsequent injuries. While admitting that his initial reading of the MRI results did not meet the standard of care, Dr. Cox presented expert testimony stating that Geesaman’s actual condition at the time of his first visit to the hospital was such that, even if he had been accurately diagnosed and properly treated at that time, there was less than a 50 percent chance that his second stroke could have been prevented.

Before the case went to the jury, Geesaman’s attorneys asked the judge to instruct jurors that in addition to considering the plaintiff’s claim for full damages based on proximate causation, they could also consider a partial damage award based on a finding of “lost chance.” Attorneys for Dr. Cox and the other defendants opposed that motion. The trial court denied the motion for a lost chance jury instruction, and instructed the jurors to evaluate Geesaman’s claim solely on whether he had established that the misreading of his MRI was the proximate cause of his second stroke. The jury returned a verdict in favor of Dr. Cox, based on a finding that Geesaman had not shown that Dr. Cox’s medical error was the proximate cause of the second stroke.

Geesaman appealed, asserting among other assignments of error that the trial court should have granted his request for a jury instruction allowing partial damages based on loss of chance. The 3rd District Court of Appeals reversed the trial court’s judgment and remanded the case for a new trial, holding that the judge should have made the requested loss of chance jury instruction. Attorneys for Dr. Cox sought and were granted Supreme Court review of the 3rd District’s ruling.

Attorneys for Dr. Cox argue that Geesaman had a choice to base his malpractice claim either on a theory of proximate cause or on a theory of loss of chance, and chose to pursue full damages based on proximate cause. They point out that at trial Geesaman’s expert witnesses did not present evidence in support of a loss of chance theory, and the trial court properly refused to give a jury instruction on loss of chance because that would impermissibly allow Geesaman to obtain partial damages as a “fallback” position if the jury rejected his actual claim, which was for full damages based on proximate cause.

Attorneys for Geesaman respond that there is nothing in the applicable case law that precludes a court from charging the jury in a medical malpractice trial on both the requirements for a finding of proximate cause and the alternative requirements for a finding of loss of chance. They argue that courts are required to make a requested jury instruction whenever the evidence presented at trial could reasonably support a claim or defense advanced under that legal theory. In this case, they say, Dr. Cox’s experts presented evidence that Geesaman 1) had a less-than-even chance of avoiding a second stroke even if he had been properly treated during his first hospital visit, and 2) the incorrect MRI interpretation by Dr. Cox deprived Geesaman of whatever chance there had been to achieve that positive outcome. Because Dr. Cox’s evidence presented the jury with all the necessary elements to support a loss of chance claim, they argue, the trial court erred in refusing to make the requested jury instruction, and Geesaman should receive a new trial at which the jury will be permitted to consider whether he is entitled to partial damages based on loss of chance.

These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered
by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to
review the case file available in the Supreme Court Clerk's
Office (614.387.9530), or to contact counsel of record.